In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems and Common and Civil Law in Comparative Criminal Procedure

Abstract

The distinctions between adversarial and inquisitorial systems and between common and civil law have been central to comparative criminal procedure. Comparativists and historians have written on the history of these systems. The predominant account is that the inquisitorial system originated in continental Europe around the twelfth and thirteenth centuries when the Catholic Church and individual secular jurisdictions established professional bureaucracies to prosecute and adjudicate crime, authorized the initiation of legal process by public officials, and adopted a system of legal proof and legal torture. As for the adversarial system, the predominant account states that it originated in the eighteenth century when English law and judges gradually authorized the participation of professional defense attorneys in felony trials, which gradually led to the adoption of common law rules of evidence and to the redefinition of the role of judges as passive umpires, among other changes.

I want to write a different history of these categories: an intellectual history or genealogy about how the adversarial and inquisitorial systems and common and civil law became central categories of comparative criminal procedure. Rather than asking when the adversarial and inquisitorial systems’ rules and institutional features originated, I am interested in a different set of questions, such as: 1) when, how and why judges, legal practitioners, policy-makers, and scholars around the world started to think that the contrast between Anglo-American and continental European jurisdictions was central to the comparative understanding of criminal process; 2) when, how and why judges, practitioners, policy-makers, and scholars started to think that the doctrinal and institutional differences between Anglo-American and continental European criminal processes were based on different epistemological paradigms for how the legal process does or should produce truthful verdicts; 3) when, how and why judges, practitioners, policy-makers, and scholars started to think that these legal and institutional differences could be explained through or were associated with differences between Anglo-American and continental European societies and cultural values and with different conceptions of the state; and 4) when, how and why judges, legal practitioners, policy-makers, and scholars started to use the adversarial and inquisitorial categories as a way to make sense of the differences between Anglo-American and continental European jurisdictions.

In this chapter, I want to start writing this genealogy or intellectual history by analyzing Sir John Fortescue and his book De Laudibus Legum Angliae, that he wrote between 1468 and 1471. I argue here that Fortescue made at least five crucial contributions to comparative criminal procedure that have survived to this day. First, he was among the very first to concentrate on analysis of the differences between criminal process in civil law and English common law and to offer a specific conceptualization to capture these differences. Second, Fortescue used the distinction between civil law and English common law in both a descriptive and a normative sense, and argued for the superiority of the English legal process. In addition, Fortescue claimed that England’s criminal process was superior to the civil law’s criminal process because it was more accurate. Fourth, Fortescue argued that there is a relationship between common law and civil law criminal processes and the societies in which they operate. As a consequence, he claimed that English criminal process could not be transplanted to other jurisdictions. Finally, Fortescue claimed that there is a close relationship between the criminal processes in common law and civil law and types of political authority.

Unearthing these intellectual origins and writing a genealogy of comparative criminal procedure make apparent that this field is a historical construction and may open new ways to think about the criminal process from a global perspective.

Keywords: Adversarial system, inquisitorial system, civil law, common law, comparative law, comparative criminal procedure, history of criminal procedure, English legal history, Fortescue